FEDERAL COURT OF AUSTRALIA

Red Bull GmbH v Bullsone Co Ltd [2019] FCA 545

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (the Rules), judgment be given against the respondent for the relief claimed in the Statement of Claim dated 5 December 2018 and the Originating Application dated 29 November 2018 by reason of the respondent being in default by failing:

(a)    to file a Notice of Address for Service as required by r 11.06 of the Rules;

(b)    to attend the case management hearing on 20 December 2018;

(c)    to file a Genuine Steps Statement as required by r 5.03(1) of the Rules;

(d)    to file a Defence within 28 days after service of the Statement of Claim, as required by r 16.32 of the Rules, or file and serve a Defence by 18 January 2019 in compliance with paragraph 1 of the Order made on 20 December 2018; and

(e)    to defend the proceeding with due diligence.

2.    The Australian trade mark registration number 1860130 be cancelled under section 88(1)(a) of the Trade Marks Act 1995 (Cth).

3.    The respondent pay the applicant’s costs of this proceeding and of the removal/cessation application, as agreed or assessed.

THE COURT DIRECTS THAT:

4.    The applicant serve the form of order on the respondent within 48 hours of receipt.

5.    On or before Friday 26 April 2019, the applicant serve on the respondent the settled form of these reasons.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    In this matter, the applicant filed an originating application on 29 November 2018, which was stamped on 3 December 2018. The application on the grounds set out in the statement of claim that accompanied it sought an order that Australian trade mark registration number 1860130 be cancelled under s 88(1)(a) of the Trade Marks Act 1995 (Cth) (the Act) and an order for costs.

2    The Red Bull marks of the applicant and the charging bull marks are set out in the statement of claim. The respondent’s Bullsone mark is also set out in the statement of claim.

3    After the service of the originating process, there has been a complete absence of participation in the matter by the respondent. The detail of this is set out in the three, but, in particular, the first two affidavits of solicitor for the applicant Mindaugas Skavronskas, of Gilbert + Tobin. For a brief period, Sparke Helmore appeared to be acting as solicitors for the respondent, but there was obviously some misunderstanding, because within one day of coming on the record, they indicated to the Court that there had been a mistake and they were going off the record. There is a patent attorney in the documentation in the Patent Office apparently acting for the respondent or who has apparently acted for the respondent.

4    The basis of this application is the failure of the respondent to take any part in the proceedings. The interlocutory application, filed on 2 April 2019, seeks the substantive orders in the originating application, pursuant to r 5.23(2)(c) of the Federal Court Rules 2011 (Cth), which provides as follows:

(2)    If a respondent is in default, an applicant may apply to the Court for:

(c)    if the proceeding was started by an originating application supported by a statement of claim… -- an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled…

5    The basis for the orders in the interlocutory application, by default, are set out in the helpful submissions of senior counsel, dated 11 April 2019. The principles governing the application were set out by Robertson J in Blacktown Workers Club Limited v Blacktown Workers Basketball Association Incorporated [2017] FCA 576, referred to in those submissions.

6    I have read those submissions and, in the circumstances of the material disclosed in the three affidavits, and in the circumstances of the service upon the respondent of the material for today’s application, and their non-appearance today after the matter was called three times outside, I am prepared to make the orders sought in the interlocutory application.

7    Therefore, for those reasons, and for the reasons set out in the submissions of senior counsel, I am persuaded and satisfied that the Court should make orders in accordance with Orders 1 and 2 in the short minutes of order attached to the interlocutory application, they being, effectively, Order 1 in the originating application.

8    During the course of this application, a delegate of the Registrar of Trade Marks referred to this Court, under s 94 of the Act, the proceeding that was before it, being an application for removal/cessation on the grounds set out in s 92(4)(a) of the Act. Given the orders that the Court proposes to make in relation to the trade mark, and given that that matter has been transferred to the Court by a delegate of the Registrar of Trade Marks, it is appropriate that the order for costs be that the respondent pay the applicant’s costs of this proceeding and of the removal/cessation application, as agreed or assessed.

Associate:

Dated:    17 April 2019